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Is Mueller's Investigation Any Match for Trump's Pardon Power?

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Is Mueller's Investigation Any Match for Trump's Pardon Power?

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Monday's news that Special Counsel Robert Mueller had unsealed an indictment against Paul Manafort and Rick Gates, and has entered into a plea agreement with former Trump campaign official George Papadopolous, will surely open the door to renewed discussion of President Trump's pardon power. Over the weekend, in fact, two fixtures of Washington's conservative legal establishment argued that President Trump should issue "a blanket presidential pardon to anyone involved in supposed collusion with Russia or Russians during the 2016 presidential campaign."

Given this furor, those not familiar with constitutional law may be wondering if there are any limits on who the President can or cannot pardon. And, related, are there any options in the event that the President does not seem to be honoring said limits?

Legally, Trump can pardon pretty much anyone he wants to for federal crimes, with the possible exception of himself. (On that point, legal scholars disagree.) The scope of the presidential pardon is so wide that it can, as in the case of disgraced Maricopa County Sheriff Joe Arpaio, essentially overrule the judiciary.

It may seem problematic to give any President, including (if not especially) this one, such a complete power over federal criminal justice. Indeed, as Chief Justice (and, not coincidentally, former President) William Howard Taft wrote for the Supreme Court in 1925, "Our Constitution confers this discretion on the highest officer in the nation in confidence that he will not abuse it."

But the pardon power itself is an important check on the unelected judiciary — because, as Taft explained, "[t]he administration of justice by the courts is not necessarily always wise or certainly considerate of circumstances which may properly mitigate guilt." That check would be worth very little indeed if its use could be controlled by anyone other than the President.

So what does the Constitution say about cases in which the President abuses the pardon power —whether to free his friends, to hide his own culpability, or just to serve indiscriminate, irrational ends? The short answer is nothing. Instead, as Taft explained later in the same opinion, executive overreach in such cases should be solved through political — rather than judicial — remedies. As he concluded, "Exceptional cases like this if to be imagined at all would suggest a resort to impeachment rather than to a narrow and strained construction of the general powers of the President."

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Those words seem especially prophetic as we begin to ponder the potential constitutional abyss into which Mueller's investigation may yet lead. But they also reflect an assumption that, while obvious to Chief Justice Taft in 1925, may be far less clear today: If a President is clearly using his pardon power to inappropriately protect those closest to him (and, potentially, himself), any Congress, including one controlled by the President's own party, will be ethically bound to respond.

So far, at least, there's very little reason to expect that current Republican leaders in Congress will do much to stop Trump. Sure, they may issue snarky public statements, but they are unlikely to work proactively. Even those Republicans who have publicly spoken out against the President — including Senators Robert Corker and Jeff Flake — have done virtually nothing to actually exert authority against him (especially Corker, who, as Chairman of the powerful Senate Foreign Relations Committee, could easily join the Democratic members of that body in conducting more rigorous oversight of the Trump administration).

Part of Congress's lethargy to date may simply reflect the absence of a smoking gun—apathy that might be overcome if President Trump starts taking concrete steps to insulate himself from the Special Counsel or thwart its efforts.

But the current partisanship may also reflect a more unsettling political calculation by GOP members who fear a primary challenge next spring. Deciding between asserting Congress's institutional prerogative and kowtowing to President Trump, they may believe that staying quiet will be better for their electoral chances—and, as such, their political careers.

Hopefully, Chief Justice Taft's faith in impeachment as the final check on a rogue President will not be tested. But if Monday's news is just the beginning, we may soon find out.

Steve Vladeck (@steve_vladeck) is a professor of law at the University of Texas School of Law whose teaching and research focus on federal jurisdiction, constitutional law, and national security law. Steve is co-editor-in-chief of the Just Security blog (@just_security) and co-host of the National Security Law Podcast (@nslpodcast).

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